New Mexico Supreme Court vacates death sentence for last 2 inmates on death row

New Mexico News

SANTA FE, N.M. (KRQE) – Two of New Mexico’s most infamous convicted murderers won’t face a death sentence anymore and the decision has some questioning the New Mexico Supreme Court.

The State Supreme Court made that ruling Friday, ending years of appeals tied to New Mexico’s two remaining death row inmates, Timothy Allen, and Robert Fry.

In its 3-2 ruling, the affirming justices essentially ruled that because other convicted killers aren’t getting the death penalty in New Mexico, it wouldn’t be fair to put Fry and Allen to death for their crimes.

In the majority opinion, Justice Barbara J. Vigil wrote, “In comparing Petitioner’s cases to other equally horrendous cases in which defendants were not sentenced to death, we find no meaningful distinction which justifies imposing the death sentence upon Fry and Allen. The absence of such a distinction renders the ultimate penalty of death contrary to the people’s mandate that the sentence be proportionate to the penalties imposed in similar cases.”

Both Fry and Allen are accused in multiple gruesome murders that rattled New Mexico more than twenty years ago, before the state abolished the death penalty in 2009.

While the state’s supreme court justices may have the final word in the case, one prosecutor who worked to fight a 2005 appeal to Fry’s death sentences says he believes the justices botched the decision.

“I’ve never been a huge proponent of the death penalty, but I have been a huge proponent of enforcing the laws that are enacted by the people’s legislators,” said Steven Suttle, a former prosecutor with the New Mexico Attorney General’s Office.

“The point is, this was the law at the time, he committed this crime,” Suttle said in an interview with KRQE News 13 Friday.

Fry’s case was profiled by KRQE News 13 Investigative Reporter Larry Barker in 2013. Chief Deputy District Attorney for the 11th Judicial District Dustin O’Brien described the vulnerable victims that Fry killed.

“He chose victims that needed help, he chose people that were defenseless,” said O’Brien. “He’s a monster.”

Fry was convicted of killing four people, including the murder of Betty Lee near Shiprock. Fry and an accomplice offered Lee a ride, tried to rape her, then bludgeoned her with a sledgehammer as she ran away in rural San Juan county.

“They were beaten, had their throats cut, they died violently, very violently,” Fry said of his victims in a 2008 reality TV interview.

Fellow death row inmate Timothy Allen was found guilty of kidnapping, sexually assaulting and murdering 17-year-old Sandra Phillips in 1994.

Both Fry and Allen were sentenced to the death penalty, but their long-awaited punishment never arrived. For years, both men filed appeal after appeal to their sentence.

Allen and Fry’s attorneys finally won that fight Friday, as the New Mexico Supreme Court ruled in the killers’ favor.

“It just really disturbs me that I don’t know what the court did with this provision,” said Suttle of the Supreme Court’s decision.

Suttle believes the decision is flawed and is contrary to what New Mexico’s Constitution says about repealing criminal law.

Article IV, section 33 of the state constitution reads, “No person shall be exempt from prosecution and punishment for any crime or offenses against any law of this state by reason of the subsequent repeal of such law.”

“The New Mexico Constitution forbids anybody benefiting from the repeal of a criminal statute,” said Suttle. “If you’ve committed a crime, been convicted and sentenced, even if that crime goes away, you can’t benefit from that repeal.”

Suttle also notes the text of the law that the legislature passed in 2009 to abolished the death penalty.

“Specifically it says, it only applies to crimes committed after July 1st of 2009,” said Suttle. “I personally know two senators who would not have voted for this bill if they have not been guaranteed that it would not apply to Robert Fry and to Tim Allen.”

The 3 to 2 vote was carried by Justices Barbara Vigil, Edward Chavez and Charles Daniels. Chavez and Daniels are now retired, but heard the case when they were still on the bench.

Both Fry and Allen will still serve life sentenced for their crimes and will never be set free.

To read the consolidated opinion in Fry v. Lopez, No. S-1-SC-34372 and Allen v. LeMaster, No. S-1-SC-34386, please visit the New Mexico Compilation Commission’s website using the following link:

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